Legal Library: Cases and Proceedings

The Commission charged that Negotiated Data Solutions LLC (N-Data) violated Section 5 of the FTC Act by engaging in unfair methods of competition. N-Data acquired patent rights originally held by National Semiconductor Corp. which were included in an IEEE industry standard for autonegotiation technology, which allows Ethernet devices made by different manufacturers to work together. Ethernet is a computer networking standard that is used in nearly every computer sold in the U.S. N-Data reneged on National Semiconductor’s commitment to charge a one-time royalty of $1000 to manufacturers or sellers of products using the IEEE standard, and demanded higher royalties from users. In a consent agreement resolving the charges, N-Data must stop enforcing the patents at issue unless N-Data has first offered a license under the original terms.

The Commission challenged the proposed acquisition by Carlyle Partners IV, L.P. of INEOS Group Ltd., alleging that the deal would be anticompetitive in the highly concentrated Midwestern market for sodium silicate. Sodium silicates are used in detergents and other products, and are important chemicals used by the pulp and paper industry. The acquisition would have joined market leader PQ Corporation, which is owned by Carlyle, with INEOS, the third-largest sodium silicate provider. Under the Commission’s order, Carlyle must divest PQ’s sodium silicate plant in Utica, Illinois, and all associated intellectual property required to operate the plant to Oak Hill Company within five days of consummating the transaction.

The Commission charged that Sun Pharmaceutical Industries Ltd’s proposed acquisition of Taro Pharmaceuticals Industries, Ltd would substantially reduce competition, likely resulting in higher prices for three distinct generic formulations of the anticonvulsant drug carbamazepine, used widely as an antiepileptic and to prevent and control seizures. The proposed deal would have reduced the number of drug suppliers to a level where the number of competitors has a direct and substantial impact on prices. In order to remedy these concerns, Sun agreed to divest all of its rights and assets needed to develop three generic forms of carbamazepine: 1) immediate-release tablets; 2) chewable tablets; and 3) extended-release tablets.

The Commission challenged McCormick & Company’s $605 million acquisition of Lawry’s and Adolph’s brands of seasoned salt products from Unilever N.V., alleging that the transaction would be detrimental to competition in the highly concentrated U.S. market for seasoned salts. According to the Commission’s complaint, the proposed deal would combine the two companies that comprise almost the entire $100 million market for seasoned salt, increasing the likelihood that McCormick would be able unilaterally to increase prices. McCormick agreed to divest its Season-All business to Morton, an FTC approved buyer, within 10 days of completing the acquisition.

An administrative law judge upheld the administrative complaint that charged that the North Texas Specialty Physicians (NTSP), a physician group practicing in Forth Worth, Texas, collectively determined acceptable fees for physician services in negotiating contracts with health insurance plans and other third party payers; thus engaging in horizontal price fixing. On December 1, 2005, the Commission issued a unanimous decision upholding the allegations that NTSP negotiated agreements among participating physicians on price and other terms, refused to negotiate with payers except on terms agreed to among its members, and refused to submit payors offers to members if the terms did not satisfy the group’s demands. The Commission concluded that the group’s contracting activities with payors amounts to unlawful horizontal price fixing and that respondent’s efficiency claims were not legitimate and not supported by the evidence.

The respondent appealed the Commission decision to the U.S. Court of Appeals for the Fifth Circuit. The Court agreed with the Commission that the anticompetitive effects of NTSP’s practices were obvious. Per remand by the Court, the Commission modified one provision of its remedial order, issuing a Final Order in September 2008. On February 28, 2009, the U.S. Supreme Court denied NTSP's petition for review.